{ "id": 1073568, "name": "MARGARET KALUSH, Petitioner, v. THE DEPARTMENT OF HUMAN RIGHTS CHIEF LEGAL COUNSEL et al., Respondents", "name_abbreviation": "Kalush v. Department of Human Rights Chief Legal Counsel", "decision_date": "1998-08-19", "docket_number": "No. 1-97-2771", "first_page": "980", "last_page": "996", "citations": [ { "type": "official", "cite": "298 Ill. App. 3d 980" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "668 N.E.2d 82", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "282 Ill. App. 3d 312", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159505 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0312-01" ] }, { "cite": "689 N.E.2d 266", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "293 Ill. App. 3d 1070", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847510 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/1070-01" ] }, { "cite": "657 N.E.2d 926", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "opinion_index": 0 }, { "cite": "167 Ill. 2d 288", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222790 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-2d/167/0288-01" ] }, { "cite": "578 N.E.2d 144", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "discussing power of Human Rights Commission to review sufficiency of Department's investigation under section 8 - 103 (775 ILCS 5/8- 103 (West 1994)), a power now delegated to the chief legal counsel under section 7 - 101.1 (775 ILCS 5/7 - 101.1 (West 1996))" } ], "opinion_index": 0 }, { "cite": "218 Ill. App. 3d 109", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498347 ], "year": 1991, "pin_cites": [ { "parenthetical": "discussing power of Human Rights Commission to review sufficiency of Department's investigation under section 8 - 103 (775 ILCS 5/8- 103 (West 1994)), a power now delegated to the chief legal counsel under section 7 - 101.1 (775 ILCS 5/7 - 101.1 (West 1996))" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0109-01" ] }, { "cite": "129 P.3d 391", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "651 N.E.2d 592", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "597", "parenthetical": "stating that necessary element to a prima facie case depends upon facts in case and need not include showing that discharged employee was performing job in satisfactory manner or that he was replaced by a member of an unprotected class" } ], "opinion_index": 0 }, { "cite": "272 Ill. App. 3d 969", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 252955 ], "year": 1995, "pin_cites": [ { "page": "978", "parenthetical": "stating that necessary element to a prima facie case depends upon facts in case and need not include showing that discharged employee was performing job in satisfactory manner or that he was replaced by a member of an unprotected class" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0969-01" ] }, { "cite": "687 N.E.2d 1090", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "293 Ill. App. 3d 105", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847513 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0105-01" ] }, { "cite": "654 N.E.2d 713", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "718", "parenthetical": "to establish prima facie case of discrimination, petitioner must establish that others outside the protected class were treated more favorably" } ], "opinion_index": 0 }, { "cite": "274 Ill. App. 3d 1014", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291560 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "1021-23" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/1014-01" ] }, { "cite": "29 U.S.C. \u00a7 621", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1982, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "545 N.E.2d 684", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "parenthetical": "adopting framework of federal Title VII discrimination cases when applying the Illinois Human Rights Act" }, { "page": "687" } ], "opinion_index": 0 }, { "cite": "131 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5570132 ], "weight": 3, "year": 1989, "pin_cites": [ { "parenthetical": "adopting framework of federal Title VII discrimination cases when applying the Illinois Human Rights Act" }, { "page": "178-79" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0172-01" ] }, { "cite": "13 F.3d 1120", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1834697 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "1125-26", "parenthetical": "employer's decision to terminate employee in order to reduce costs or prevent vesting of pension benefits, without more, does not constitute age discrimination under Title VII of the Civil Rights Act of 1964 (42 U.S.C. \u00a7 2000e et seq. (1982))" } ], "opinion_index": 0, "case_paths": [ "/f3d/13/1120-01" ] }, { "cite": "129 F.3d 391", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11895448 ], "year": 1997, "pin_cites": [ { "page": "398-99" } ], "opinion_index": 0, "case_paths": [ "/f3d/129/0391-01" ] }, { "cite": "507 U.S. 604", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6235233 ], "weight": 6, "year": 1993, "opinion_index": 0, "case_paths": [ "/us/507/0604-01" ] }, { "cite": "634 N.E.2d 463", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1994, "pin_cites": [ { "page": "469", "parenthetical": "employee's prior good performance evaluations did not refute fact that employee's performance immediately prior to termination was deficient" }, { "page": "468", "parenthetical": "evidence that employer did not treat complainant differently from her similarly situated younger coworker justified dismissal of age discrimination charge for lack of substantial evidence" } ], "opinion_index": 0 }, { "cite": "262 Ill. App. 3d 247", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850356 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0247-01" ] }, { "cite": "297 Ill. App. 3d 435", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910262 ], "weight": 5, "year": 1998, "pin_cites": [ { "parenthetical": "abuse of discretion standard applies to review of chief legal counsel's order sustaining Department's decision to dismiss petitioner's charge for lack of substantial evidence" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0435-01" ] }, { "cite": "596 N.E.2d 1192", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1992, "pin_cites": [ { "page": "1197" }, { "page": "1197", "parenthetical": "speculation and conjecture cannot stand as a matter of law" } ], "opinion_index": 0 }, { "cite": "231 Ill. App. 3d 764", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5204145 ], "weight": 5, "year": 1992, "pin_cites": [ { "page": "772-73" }, { "page": "771" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/0764-01" ] } ], "analysis": { "cardinality": 1223, "char_count": 40614, "ocr_confidence": 0.755, "pagerank": { "raw": 2.705688842723987e-07, "percentile": 0.8288728416212683 }, "sha256": "0f468ff2cff88d9efc5b0f818f91fd278f3990cddc78f7aec5fe001901bd8bb2", "simhash": "1:32f839c26a57ed5a", "word_count": 6363 }, "last_updated": "2023-07-14T16:29:38.148323+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARGARET KALUSH, Petitioner, v. THE DEPARTMENT OF HUMAN RIGHTS CHIEF LEGAL COUNSEL et al., Respondents." ], "opinions": [ { "text": "JUSTICE GORDON\ndelivered the opinion of the court:\nMargaret Kalush, the petitioner, filed an age discrimination charge with the Illinois Department of Human Rights (the Department) after being terminated by her employer, Deluxe Corporation (Deluxe). The Department conducted an investigation and dismissed petitioner\u2019s charge, finding a lack of substantial evidence. That dismissal was affirmed by the chief legal counsel of the Department and the petitioner seeks judicial review of that order. 775 ILCS 5/7 \u2014 101.1, 8 \u2014 111(A)(1) (West 1996). On appeal, Kalush contends that the chief legal counsel abused her discretion by failing to investigate her charge further and in sustaining the Department\u2019s dismissal of her charge. For the reasons discussed below, we affirm.\nFACTS\nPetitioner alleged in her employment discrimination charge, filed with the Department on June 20, 1996, that she began employment with Deluxe, a company that produces checks and other business forms, in 1973 as an order entry clerk. At the time of her discharge she was employed as a department manager. The petitioner alleged that she was discharged on January 31, 1996, at the age of 42. She stated that during the course of her employment she had received \u201cexemplary performance reviews, and was otherwise discharging all of her responsibilities in an appropriate fashion at the time of her discharge.\u201d The petitioner alleged that she was replaced by an existing employee, Cheryl Thompson, who was believed to be under the age of 40. Petitioner furthe^ alleged that she was more experienced than Thompson and better qualified. She contended that Deluxe\u2019s termination of her employment constituted age discrimination in violation of section 2 \u2014 102(A) of the Illinois Human Rights Act (775 ILCS 5/2\u2014 102(A) (West 1994)).\nDeluxe filed a verified response to Kalush\u2019s charge on August 15, 1996. In that response, Deluxe asserted that Kalush\u2019s employment was terminated due to \u201cunsatisfactory performance.\u201d Deluxe denied that Kalush was performing her job responsibilities appropriately at the time of her discharge. It stated that on September 6, 1995, Kalush had been placed on a 90-day warning after being informed by Bernie Sponsel, facility manager, and Barbara Lee, production manager, that she (Kalush) was not performing the basic responsibilities of her job. According to Deluxe, Kalush received progress reviews at 30-day intervals thereafter. On October 3 and 5, 1995, Kalush was advised that her performance continued to be unsatisfactory; on November 9, 1995, Kalush was reminded of areas where her performance needed improvement; and on December 6, 1995, Kalush\u2019s managers acknowledged improvement but pointed out areas of concern and extended the warning period an additional five weeks. On December 27, 1995, Kalush was advised that her improvement had not been consistent, that she continued to not meet the requirements of her job, and that she would be permitted to apply for other posted job openings within the company or be terminated.\nDeluxe\u2019s response further stated that Kalush never received an \u201cexemplary\u201d performance review and that her review ratings ranged from \u201cHigh Expected\u201d to \u201cProbationary.\u201d Deluxe stated that it originally replaced Kalush with Dennis Fisher, age 46, who later was replaced by Cheryl Thompson, age 35. According to Deluxe, Thompson\u2019s performance ratings as a department manager during the period relevant to the charge were \u201cExcellent\u201d or \u201cHigh Excellent.\u201d Deluxe stated that Thompson was better qualified for the position of department manager than Kalush. Deluxe also stated that at the time it terminated Kalush it terminated another department manager, Thomas Klimczak, age 38, for reasons similar to those that existed as to Kalush.\nFollowing receipt of Kalush\u2019s charge and Deluxe\u2019s response, the Department conducted an investigation. The Department obtained copies of performance reviews for Kalush from September 6, 1995, to the date of her termination as well as copies of reports prepared by Sponsel documenting meetings he and Lee had with Kalush concerning her job performance. In his September 6, 1995, report, Sponsel stated that he and Lee informed Kalush that she was not meeting the minimum requirements of or the minimum time requirements for coaching/counseling and \u201cD.EM.S.\u201d reviews, a basic job function of a department manager. Kalush was told that she was not effectively recognizing and addressing employee performance issues and problems and was not engaging in effective problem solving/follow-up for those situations. Kalush was advised that she exhibited very low skill level in the areas of human relations, communications, planning, problem solving/decision making and leadership. Kalush was told that she needed to exhibit improvement during the next 90 days in the following areas: updating production and job standards; updating coaching/ counselling and D.EM.S. reviews; and updating and sharing with department employees information relative to department accuracy and front-end billing errors. Kalush also was told that at the conclusion of the 90-day warning period she would be told whether she would continue at Deluxe as a department manager.\nIn a report dated October 3, 1995, Sponsel stated that he and Lee conducted a formal performance review of Kalush. They discussed with Kalush the need to develop better productivity standards for her employees; to provide good employee feedback for improvement; to cross-train employees and eliminate overtime; to develop independent thinking and cooperation among the employees in her department; and to be proactive in providing career counseling to her employees. Sponsel stated that Kalush \u201cknows where she stands regarding coaching, counseling and D.EM.S. based on previous conversations.\u201d He stated that Kalush lacked people development skills and was too tolerant of lack of employee performance. He stated that he and Lee discussed with Kalush their concern about her future as a manager.\nIn a report dated November 11, 1995, Sponsel stated that he and Lee met with Kalush for the 60-day warning period review. Lee reviewed Kalush\u2019s coaching/counseling and D.EM.S. records and advised Kalush that her documentation of conversations with employees needed to be more specific and that her job standards needed to be updated and applied consistently. Kalush again was told that she needed to improve her leadership, problem-solving and decision-making skills.\nSponsel\u2019s report for the 90-day warning period review held on December 6, 1995, stated that he and Lee informed Kalush that they had reviewed her last 30 days of coaching/counseling and D.EM.S reviews and had seen some improvement. They also informed her that they continued to see a lack of communication, problem-solving/ decision-making, and human relations skills. Sponsel extended the warning period five weeks to January 12, 1996, but indicated in his report that he saw a \u201cslim chance for [Kalush] continuing as a Manager and with Deluxe.\u201d\nKalush was terminated on January 31, 1996, for \u201c[unsatisfactory work due to lack of job skills.\u201d The termination policy in force at Deluxe at that time provided that an employee could be discharged without prior warning because of unsatisfactory work.\nAdditional information provided to the Department by Deluxe included the performance reviews of another department manager, Thomas Klimczak, who, like Kalush, had been terminated after being placed on a 90-day warning period by Sponsel and Lee. Reports concerning those reviews, prepared by Sponsel, were submitted to the Department. The first report, dated September 6, 1995, showed that Klimczak exhibited deficiencies similar to Kalush with respect to providing necessary and timely coaching/counseling and D.P.M.S. reviews of employees he supervised. In that report Sponsel and Lee expressed concern about the quality of Klimczak\u2019s coaching/counseling documentation and his feedback to employees. The 30-, 60-, and 90-day reports indicated that Sponsel and Lee continued to have concerns regarding Klimczak\u2019s communication, problem-solving and decision-making skills. Klimczak\u2019s warning period, like Kalush\u2019s, was extended five weeks but he, too, was terminated on January 12, 1996, for \u201cpoor performance due to lack of job skills.\u201d\nOther documentation provided by Deluxe showed that during the time period in question it had terminated three employees between the ages of 22 and 25, two of whom worked as telephone order clerks and one of whom worked as a sales trainer, for poor work performance.\nThe Department\u2019s investigation report showed that its investigator conducted telephone interviews of nine current and former Deluxe employees, including Sponsel and Kalush. (The investigator was unable to locate Lee, who was no longer employed at Deluxe.) Sponsel told the investigator that Kalush had been placed on probation because of poor work performance and was terminated because she was not meeting her overall job responsibilities. Sponsel also told the investigator that Klimczak, who was 38, was placed on probation and terminated for similar reasons. Other Deluxe employees interviewed were: Nick Fragola, age 50, production manager; Ed Kongnia, age 37, department manager; Heidi DeZonno, age 32, department manager; Dennis Fischer, age 47, department manager; Mark Lebeau, age 37, department manager; Gloria Witaker, age 44, former department manager; and Hamual Harbin, age 35, department manager. According to the investigation report, all but Harbin stated that Deluxe managers were normally subject to work performance evaluations and could be placed on probationary status or terminated if their work performance was poor. Harbin indicated that he was not aware of what happened when a manager failed to meet company expectations.\nBased upon this information, the Department found a lack of substantial evidence and dismissed Kalush\u2019s charge. The investigation report issued by the Department found that Deluxe\u2019s termination policy allowed for termination because of unsatisfactory work and that Kalush had been placed on probation for poor work performance. The Department found that Deluxe placed a younger employee, Klimczak, on a 90-day probation period and discharged him due to poor work performance. Finally, the Department found that Deluxe employed 254 employees and during the last year discharged 28 employees of which 9 were over the age of 40 and 19 were under the age of 40.\nKalush filed a request for review of the Department\u2019s determination with the Department\u2019s chief legal counsel as permitted by section 7 \u2014 101.1 of the Human Rights Act (the Act) (775 ILCS 5/7 \u2014 101.1 (West 1996)). In her request for review, she asserted that she had been a competent and effective department manager for Deluxe as evidenced by an April 1995 semi-annual review prepared by Barbara Lee in which she (Kalush) had been given \u201chigh marks.\u201d (A copy of that evaluation was not submitted with Kalush\u2019s request for review.) Kalush contended that she had been performing her responsibilities satisfactorily through the summer of 1995 when she was informed that Deluxe would be undergoing a corporate reorganization and that her department would be affected. Kalush asserted that as part of the reorganization plan Deluxe offered her a \u201cBusiness Systems\u201d severance package which she rejected in favor of continued employment for one year on a new \u201ccustomer interface project.\u201d Kalush asserted that she agreed to leave Deluxe when that project was completed with a severance package known as the \u201cCIP Separation Package.\u201d\nIn her request for review Kalush contended that the Department\u2019s investigation of her charge was deficient because the Department did not discover that all department managers had fallen behind in completing performance evaluations for their immediate work groups as a result of production pressures and other matters related to the reorganization. She alleged that all performance review documentation for her staff was brought up to date by the end of October 1995 and that ongoing statements by Sponsel with respect to that deficiency constituted \u201ca subterfuge to hide the real motivation behind [Sponsel\u2019s] actions,\u201d which was to terminate \u201cKalush along with other higher paid staff at the plant in order to reduce overall costs.\u201d Kalush contended that Sponsel\u2019s decision to terminate her was \u201cpurely to save salary expense as well as to deny Kalush her rightful severance benefits.\u201d\nFinally, Kalush contended that the Department\u2019s investigation was inadequate because the Department failed to interview Barbara Lee and because the Deluxe employees who were interviewed were not questioned regarding their observations of Kalush\u2019s management skills. Kalush asserted that significant evidence of wrongful discrimination existed and that she was \u201ca victim of age discrimination perpetrated by Deluxe Corporation in its efforts to pare down its managerial work force.\u201d\nOn June 23, 1997, the chief legal counsel issued her order sustaining the Department\u2019s dismissal of Kalush\u2019s charge for lack of substantial evidence. The order found that the evidence showed that Kalush had been discharged because she failed to improve her work performance despite receiving several counseling sessions and opportunities to improve. The order found that Kalush failed to establish that Deluxe\u2019s actions were motivated by Kalush\u2019s age. It found that a similarly situated younger employee also was subject to a 90-day probationary period and was discharged for lack of improvement. The order also noted that Kalush herself identified Sponsel\u2019s motive in terminating her as being to reduce overall costs and \u201c \u2018to save salary expense as well as to deny [Complainant] her rightful severance benefits.\u2019 \u201d In response to that assertion the order stated:\n\u201cEven assuming, arguendo, that Respondent discharged Complainant in order to \u2018save salary expense\u2019, this, in and of itself, does not provide sufficient evidence of age discrimination which would warrant a reversal of the Department\u2019s initial determination.\u201d\nDISCUSSION\nSection 7A \u2014 102 of the Human Rights Act provides that the Department \u201cshall conduct a full investigation of the allegations set forth in the charge.\u201d 775 ILCS 5/7A \u2014 102(C)(1) (West 1996). See Parham v. Macomb Unit School District No. 185, 231 Ill. App. 3d 764, 772-73, 596 N.E.2d 1192, 1197 (1992), stating:\n\u201cInvestigations conducted by administrative agencies attempt to discover and produce evidence not for the purpose of adjudicating guilt or proving pending charges, but rather to serve as the basis for determining whether facts exist to justify instituting a complaint.\u201d\nThe Department\u2019s investigation includes consideration of the complainant\u2019s charge, the respondent\u2019s verified response to the allegations contained in that charge; the complainant\u2019s reply to respondent\u2019s response, if filed; and supplements filed by either party while the investigation of the charge is pending. 775 ILCS 5/7A \u2014 102(B) (West 1996).\nThe Act further provides that each charge shall be the subject of a report to the Director and that upon review of the report the Director shall determine whether there is substantial evidence that the alleged civil rights violation was committed. 775 ILCS 5/7A\u2014 102(D) (West 1996). A \u201csubstantial evidence\u201d determination\n\u201cis limited to determining the need for further consideration of the charge pursuant to the Act and includes, but is not limited to, findings of fact and conclusions, as well as the reasons for the determinations on all material issues and questions of credibility. Substantial evidence is evidence which a reasonable mind accepts as sufficient to support a particular conclusion and which consists of more than a mere scintilla but may be somewhat less than a preponderance.\u201d 775 ILCS 5/7A \u2014 102(D)(2) (West 1996).\nThe Director\u2019s dismissal of the charge upon a finding of no substantial evidence is subject to review by the chief legal counsel of the Department. 775 ILCS 5/7 \u2014 101.1(A), 5/7A \u2014 102(D)(2)(a) (West 1996). In conducting its review, the chief legal counsel\n\u201cmay consider the Director\u2019s report, any argument and supplemental evidence timely submitted, and the results of any additional investigation conducted by the Director in response to the request. In his or her discretion, the Chief Legal Counsel of the Department may designate a staff attorney to conduct an investigation into the factual basis of the matter at issue.\u201d 775 ILCS 5/7 \u2014 101.1(B) (West 1996).\nThe determination of the chief legal counsel sustaining or reversing the Department\u2019s dismissal of charges is subject to judicial review in the appellate court. 775 ILCS 5/7 \u2014 101.1(A) (West 1996) (\u201c[a]ny final order entered by the Chief Legal Counsel under [section 7 \u2014 101.1] is appealable in accordance with paragraph (A)(1) of Section 8 \u2014 111\u201d); 775 ILCS 5/8 \u2014 111(A)(1) (West 1996) (\u201c[a]ny complainant or respondent may apply for and obtain judicial review of any final order entered under this Act by filing a petition for review in the Appellate Court\u201d). The standard of review is to determine whether there was an abuse of discretion by the chief legal counsel in his or her determination. Traficano v. Department of Human Rights, 297 Ill. App. 3d 435 (1998) (abuse of discretion standard applies to review of chief legal counsel\u2019s order sustaining Department\u2019s decision to dismiss petitioner\u2019s charge for lack of substantial evidence). See also Parham, 231 Ill. App. 3d 764, 596 N.E.2d 1192 (discussing scope of review of Human Rights Commission whose reviewing function of Department\u2019s dismissal of charges has as of January 1, 1996, been delegated to Department\u2019s chief legal counsel (775 ILCS 5/7 \u2014 101.1 (West 1996))). Accord Marinetti v. Human Rights Comm\u2019n, 262 Ill. App. 3d 247, 634 N.E.2d 463 (1994).\nOn appeal, Kalush first argues that the chief legal counsel abused her discretion by failing to conduct her own independent investigation pursuant to section 7 \u2014 101.1(B) of the Act. She argues that such an investigation was necessary because: (1) the Department failed to conduct a fall investigation of her complaint; and (2) her request for review raised an affirmative matter not considered by the Department. With respect to the inadequacy of the Department\u2019s investigation, Kalush contends that she provided the Department with a list of witnesses to be interviewed and a short summary of their involvement. She concedes that all of these witnesses, with the exception of Barbara Lee (who had relocated to Arizona), were interviewed by the Department investigator but contends that the investigator limited his telephonic interviews of them to questions concerning Deluxe\u2019s policies with respect to reviewing the performance of its department managers and with respect to disciplining them and/or terminating them for poor performance. She argues that those interviews should have included questions concerning the quality of her work performance and, with respect to Nick Fragola, should have extended to his involvement in discussions with Kalush in June 1995 wherein she was urged to accept the \u201cBusiness Systems\u201d severance package. Kalush further argues that the investigator should have interviewed Barbara Lee, \u201cwho had been intimately involved in the performance appraisals of Margaret Kalush for many years, prior to the disciplinary action taken *** in early September, 1995\u201d and who could have shown that Kalush had satisfactorily performed her duties prior to that time. Finally she contends that the investigator did not review Lee\u2019s \u201cpositive performance appraisals\u201d of Kalush given prior to the onset of the 90-day warning period.\nBased upon the record before us, we cannot say that the chief legal counsel\u2019s decision to forego further investigation, and the implicit finding thereby that the Department\u2019s investigation was sufficient, was an abuse of discretion. Contrary to Kalush\u2019s contentions, it cannot be said that the Department\u2019s investigation was incomplete and limited. There is no dispute that the investigator contacted all Deluxe employees identified by Kalush as having information relative to her charge with the exception of Lee, who had relocated to Arizona. Although the Department\u2019s report only accounts for certain information provided by the managers, the report does not purport to be a detailed recitation of all information gathered during the course of the interviews. Thus, there is no reason to presume, as Kalush contends, that the Department\u2019s investigator failed to elicit information regarding Kalush\u2019s work performance immediately preceding her discharge. We must also reject Kalush\u2019s contention that the investigator\u2019s interview of Nick Fragola should have extended to Fragola\u2019s involvement in discussions with Kalush in June 1995 concerning Deluxe\u2019s severance packages. First, for the reasons stated above, it is not clear that no such discussion occurred. Even assuming it did not occur, however, this does not reveal a shortcoming in the investigation. There would have been no reason for the investigator to question Fragola regarding the severance packages offered to Kalush since Kalush\u2019s charge and Deluxe\u2019s response did not mention Deluxe\u2019s reorganization and offer of severance packages and did not relate those factors in any way to the age discrimination charge.\nThe chief legal counsel also could readily find that the Department\u2019s investigation was sufficient even though Barbara Lee was not contacted. In that regard, we note that the investigator interviewed Bernie Sponsel, the plant manager and person who, along with Lee, evaluated Kalush\u2019s performance during the time period immediately preceding her termination. Sponsel was the person responsible for the termination decision. Moreover, any information Lee could have provided with respect to Kalush\u2019s job performance prior to the 90-day warning period and any documentary evidence of Lee\u2019s \u201cpositive performance appraisals\u201d of Kalush given prior to the onset of the 90-day warning period were remote in time and would not have disproved the fact that Kalush was terminated due to poor job performance occurring immediately prior to her termination. See Marinelli, 262 111. App. 3d at 254, 634 N.E.2d at 469 (employee\u2019s prior good performance evaluations did not refute fact that employee\u2019s performance immediately prior to termination was deficient).\nWe also reject Kalush\u2019s contention that the chief legal counsel abused her discretion by failing to conduct a further investigation inquiring into a new matter raised by Kalush in her request for review which was not raised or considered during the Department\u2019s investigation. That matter concerned Deluxe\u2019s reorganization and offer of two severance packages to Kalush and Kalush\u2019s assertion that Sponsel\u2019s decision to terminate her was motivated by a desire to save salary costs and severance benefits. Initially, while not raised by the chief legal counsel in this appeal, we note that the chief legal counsel would not have had jurisdiction over the new assertion because it was not timely raised in Kalush\u2019s charge filed with the Department. See 775 ILCS 5/7 \u2014 102(A) (West 1996) (a charge must be filed within 180 days of the date an alleged civil rights violation has been committed). Moreover, as the chief legal counsel held in her order sustaining the dismissal, even assuming the new information were true, a desire to save salary expense would not in and of itself \u201cprovide sufficient evidence of age discrimination which would warrant a reversal of the Department\u2019s initial determination.\u201d See Hazen Paper Co. v. Biggins, 507 U.S. 604, 123 L. Ed. 2d 338, 113 S. Ct. 1701 (1993); Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 398-99 (7th Cir. 1997); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1125-26 (7th Cir. 1994) (employer\u2019s decision to terminate employee in order to reduce costs or prevent vesting of pension benefits, without more, does not constitute age discrimination under Title VII of the Civil Rights Act of 1964 (42 U.S.C. \u00a7 2000e et seq. (1982))). See also Zaderaka v. Illinois Human Rights Comm\u2019n, 131 Ill. 2d 172, 545 N.E.2d 684 (1989) (adopting framework of federal Title VII discrimination cases when applying the Illinois Human Rights Act).\nKalush next contends that regardless of the sufficiency of the investigation of her charge the chief legal counsel abused her discretion in sustaining the Department\u2019s dismissal of her age discrimination charge. Kalush contends that she provided the Department with significant facts as well as sources of information that would have established, for purposes of a preliminary investigation, a prima facie case of age discrimination. She concedes that facts in the record \u201ccolor-ably suggest\u201d that Deluxe had a legitimate, nondiscriminatory reason for its decision to terminate her. She also concedes that the burden of persuasion would have shifted back to her to establish that Deluxe\u2019s articulated reason was a mere pretext for an act of unlawful discrimination.\nIn analyzing employment discrimination actions brought under the Human Rights Act, Illinois has adopted the analytical framework utilized by the federal courts addressing discrimination claims brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. \u00a7 2000e et seq. (1982)) and the Age Discrimination in Employment Act (29 U.S.C. \u00a7 621 et seq. (1982)). E.g., Zaderaka, 131 Ill. 2d 172, 545 N.E.2d 684; Interstate Material Corp. v. Human Rights Comm\u2019n, 274 Ill. App. 3d 1014, 654 N.E.2d 713 (1995). That analysis establishes a three-part test for establishing a claim of discrimination. First, the plaintiff must establish by the preponderance of the evidence a prima facie case of unlawful discrimination. Thereafter, a rebuttable presumption arises that the employer unlawfully discriminated against the plaintiff. Second, to rebut the presumption, the employer must articulate, not prove, a legitimate nondiscriminatory reason for its decision. Third, if the employer carries its burden of production, the presumption of unlawful discrimination falls and the plaintiff must prove by a preponderance of the evidence that the employer\u2019s articulated reason was not its true reason, but a pretext for unlawful discrimination. Zaderaka, 131 Ill. 2d at 178-79, 545 N.E.2d at 687; Christ Hospital & Medical Center v. Human Rights Comm\u2019n, 293 Ill. App. 3d 105, 687 N.E.2d 1090 (1997).\nTo establish a prima facie case of discrimination, the petitioner must show that: (1) she is a member of a group protected by the law; (2) she was performing satisfactorily; (3) she was discharged despite the adequacy of her work; and (4) a similarly situated employee who is not a member of the protected group was not discharged. E.g., Traficano, 297 Ill. App. 3d 435; Marinetti, 262 Ill. App. 3d 247, 634 N.E.2d 463. Cf. ISS International Service System, Inc. v. Human Rights Comm\u2019n, 272 Ill. App. 3d 969, 978, 651 N.E.2d 592, 597 (1995) (stating that necessary element to a prima facie case depends upon facts in case and need not include showing that discharged employee was performing job in satisfactory manner or that he was replaced by a member of an unprotected class). For purposes of determining whether there is substantial evidence of discrimination to support a charge, the evidence \u201cmay be somewhat less than a preponderance\u201d but must be more than a scintilla. 775 ILCS 5/7A \u2014 102(D)(2) (West 1996). Substantial evidence exists when a reasonable mind accepts that evidence as sufficient to support the charge. 775 ILCS 5/7A \u2014 102(D)(2) (West 1996). Here it was not an abuse of discretion for the chief legal counsel to find that a prima facie case of age discrimination had not been proved by substantial evidence.\nThe evidence reviewed by the chief legal counsel showed that Kalush only satisfied the first element of a prima facie case, that she was a member of a protected class. The Human Rights Act provides that unlawful discrimination includes discrimination against an individual because he or she is over 40 years of age. 775 ILCS 5/1 \u2014 103(A) (West 1996). Kalush was 42 years old at the time of her discharge. The evidence did not satisfy the remaining elements of a prima facie case. In her charge of age discrimination, Kalush asserted that she was replaced by an existing employee, Cheryl Thompson, who was under the age of 40, less experienced, and less qualified. That allegation was not supported by even a scintilla of evidence acquired during the Department\u2019s investigation of the charge. The documents submitted by Deluxe showed that Thompson was better qualified than Kalush and, as a department manager, had received performance ratings that were better than Kalush\u2019s. See Traficano, 297 Ill. App. 3d 435 (finding that no prima facie case established because employees not similarly situated); Marinetti, 262 Ill. App. 3d 247, 634 N.E.2d 463 (finding that petitioner\u2019s coworker was not similarly situated since there was no evidence that coworker had error rate as high as petitioner). Additional documentary evidence submitted by Deluxe showed that it treated similarly an employee who was not within the protected class but who was similarly situated to Kalush. That employee, Thomas Klimczak, who was 38, was discharged, like Kalush, for poor work performance after having been placed on a 90-day warning period. See Marinetti, 262 Ill. App. 3d at 253, 634 N.E.2d at 468 (evidence that employer did not treat complainant differently from her similarly situated younger coworker justified dismissal of age discrimination charge for lack of substantial evidence). Accord Interstate Material Corp., 274 Ill. App. 3d at 1021-23, 654 N.E.2d at 718 (to establish prima facie case of discrimination, petitioner must establish that others outside the protected class were treated more favorably).\nKalush has not set forth, either in her request for review or in her brief on appeal, any facts establishing discrimination. In her brief she summarily states, without explanation, that \u201cthe record in this case does establish that facts exist to prove a prima facie case of age discrimination.\u201d In her request for review, Kalush disputed the Department\u2019s finding that she was terminated because of poor job performance. She asserted that she was performing her job satisfactorily and that she was discharged to save salary expense. Her request for review attacked the sufficiency of the Department\u2019s interviews of the managerial witnesses. As previously discussed, there is no indication that the Department\u2019s investigation was in any way insufficient. Kalush\u2019s contention that, had they been asked, the managerial witnesses would have indicated that Kalush was an \u201cefficient and effective department manager\u201d was mere speculation and conjecture. Par-ham, 231 Ill. App. 3d at 771, 596 N.E.2d at 1197 (speculation and conjecture cannot stand as a matter of law). Moreover, as also discussed above, there is no reason to presume that the employees did not give information to the Department\u2019s investigator relative to Kalush\u2019s performance. All that can be said is that any such information was not found to be relevant to Kalush\u2019s charge and thus was not included in the Department\u2019s report.\nKalush\u2019s request for review also speculated that, if contacted, Barbara Lee could have commented upon the \u201cactual management skills and manager competencies exhibited by Kalush\u201d and could have confirmed that she gave Kalush \u201chigh marks\u201d in April 1995. This contention carries little weight because, according to the reports prepared by Sponsel, Lee was involved in the performance reviews of Kalush that occurred immediately prior to her discharge, and those reports indicated that Lee expressed concerns about Kalush\u2019s performance at those times. Moreover, as discussed above, even if Lee would have confirmed that she gave Kalush \u201chigh marks\u201d in April 1995, that fact would not disprove evidence of poor performance by Kalush subsequent to that time. Finally, as also discussed above, Kalush\u2019s assertion in her request for review that her discharge was due to a desire to save salary expense would not in and of itself provide sufficient evidence of age discrimination. See Hazen Paper Co., 507 U.S. 604, 123 L. Ed. 2d 338, 113 S. Ct. 1701; Chiaramonte, 129 P.3d 391; Anderson, 13 F.3d 1120 (employer\u2019s decision to terminate employee in order to reduce costs or prevent vesting of pension rights, without more, does not constitute age discrimination under Title VII of the Civil Rights Act of 1964 (42 U.S.C. \u00a7 2000e et seq. (1982)). Since no other evidence of age discrimination was presented by Kalush, that assertion must fail as well. Thus, given the record before it, the chief legal counsel did not abuse her discretion in sustaining the dismissal of Kalush\u2019s discrimination charge for lack of substantial evidence of age discrimination.\nFor the foregoing reasons, the order of chief legal counsel of the Department of Human Rights dismissing petitioner\u2019s charge is affirmed.\nAffirmed.\nLEAVITT, EJ., and BURKE, J., concur.\nThere is no indication in the record what \u201cD.P.M.S.\u201d means.\nWe note that the report did not indicate the number of employees over the age of 40 and the number of employees under the age of 40. The absence of those statistics renders the statistics given in the report less than fully significant.\nKalush\u2019s request for review also asserted discriminatory treatment in that Lee, who had voluntarily left Deluxe in March 1996 to relocate to Arizona, had received a severance package even though she did not qualify for any such benefit. In sustaining the Department\u2019s findings, the chief counsel found that Kalush had waived this argument by not raising it in a timely manner. See 775 ILCS 5/7 \u2014 102(A) (West 1994). Kalush has not appealed this waiver finding.\nPetitioner argues that there was error in both the chief legal counsel\u2019s failure to conduct an independent investigation and in the Department\u2019s failure to conduct a full investigation. However, as discussed in the text of this opinion, we review only the determination of the chief legal counsel. See 775 ILCS 5/7 \u2014 101.1(A), 8 \u2014 111(A)(1) (West 1996); Traficano v. Department of Human Rights, 297 Ill. App. 3d 435 (1998); Parham v. Macomb Unit School District No. 185, 231 Ill. App. 3d 764, 596 N.E.2d 1192 (1992). It is the chief legal counsel who determines the sufficiency of the Department\u2019s investigation. See Gayle v. Human Rights Comm\u2019n, 218 Ill. App. 3d 109, 578 N.E.2d 144 (1991) (discussing power of Human Rights Commission to review sufficiency of Department\u2019s investigation under section 8 \u2014 103 (775 ILCS 5/8\u2014 103 (West 1994)), a power now delegated to the chief legal counsel under section 7 \u2014 101.1 (775 ILCS 5/7 \u2014 101.1 (West 1996))). Our review must then consider whether the chief legal counsel abused her discretion in refusing to conduct an independent investigation which ultimately brings the sufficiency of the Department\u2019s investigation under scrutiny. We further must determine whether the chief legal counsel otherwise abused her discretion in not pursuing investigation of new matter raised in the request for review and in sustaining the Department\u2019s dismissal of the charge.\nIn a supplemental brief filed pursuant to leave of court, Deluxe argues that Kalush is collaterally estopped from challenging the finding by the Department of Human Rights, affirmed by the chief legal counsel, that she was discharged for poor performance. In support of this argument, Deluxe notes that, in addition to filing the instant action, Kalush filed a federal lawsuit. The latter lawsuit alleged the same wrongful termination and sought recovery on two theories: breach of an oral employment contract and promissory estoppel. The federal court granted summary judgment to Deluxe on both counts. In its memorandum opinion and order, the court recited the facts of the case, stating that Sponsel terminated Kalush \u201cfor unsatisfactory work performance.\u201d The court found that no contract existed because there was no clear promise of employment, no consideration, and no writing to satisfy the statute of frauds. The court also found that Kalush could not establish promissory estoppel because she could not prove the existence of an unambiguous promise of employment. In a footnote, the court observed the existence of certain documents in the record that could have been relied upon by Kalush as evidence of an alleged oral contract or to show she had a written contract. The court dismissed this observation because Kalush had not raised any argument in that regard, noting further that, \u201c[i]n any case, considerable evidence indicates that Deluxe had cause to fire Kalush, especially given the climate created by the company\u2019s consolidation process and expressed intent to demand a higher standard of performance from its employees.\u201d\nDeluxe relies on the federal court\u2019s statement that Sponsel dismissed Kalush for unsatisfactory work performance and the footnote quoted above as the basis for its collateral estoppel contention that Kalush is barred from re-litigating the issue of the reason for her termination. We disagree. Collateral estoppel applies to bar relitigation of an issue where: (1) the issue decided in the prior adjudication is identical to that presented in the current case; (2) the party against whom the estoppel is asserted was a party or in privity with a party to the prior litigation; and (3) the prior suit resulted in a final judgment on the merits. E.g., Herzog v. Lexington Township, 167 Ill. 2d 288, 657 N.E.2d 926 (1995); Rhodes v. Board of Trustees of Calumet City Policemen\u2019s Pension Fund, 293 Ill. App. 3d 1070, 689 N.E.2d 266 (1997); Midland Hotel Corp. v. Director of Employment Security, 282 Ill. App. 3d 312, 668 N.E.2d 82 (1996). Collateral estoppel can apply only where a decision on an issue was necessary to a judgment in the first litigation and the individual sought to be bound actually litigated the issue in the suit. Herzog, 167 Ill. 2d 288, 657 N.E.2d 926; Rhodes, 293 Ill. App. 3d 1070, 689 N.E.2d 266. The issue of the reason for Kalush\u2019s discharge was not litigated in the federal court nor was its determination necessary to the federal court judgment.\nThe issue in Kalush\u2019s federal action was whether Deluxe had made a promise of employment. The court\u2019s statement that Kalush had been terminated for \u201cunsatisfactory work performance\u201d was not a finding of a disputed fact. It did not appear in the \u201cAnalysis\u201d section of the memorandum opinion but, rather, in the earlier section that set forth the facts of the case. It was a recitation of the reason given by Sponsel for his termination of Kalush. The court\u2019s footnote statement that considerable evidence indicated that Deluxe had cause to terminate Kalush also did not dispose of the federal lawsuit. It was merely dictum, since the court found the absence of a contract of employment such that Kalush could be terminated at will. Since the federal court decision was not required to determine the issue of the reason for Kalush\u2019s termination, the principles of collateral estoppel do not bar consideration of that issue in the instant case.\nIn a separate argument, Kalush contends that the findings of the Department sustained by the chief legal counsel were against the manifest weight of the evidence. We will not address this argument as it is repetitious of Kalush\u2019s earlier argument that the Department\u2019s investigation was deficient. Moreover, as discussed earlier, the standard of review of the chief legal counsel\u2019s order sustaining the Department\u2019s dismissal of a charge after investigation is the more deferential abuse of discretion standard rather than the manifest weight standard applied to dismissal of charges after hearings. Traficano v. Department of Human Rights, 297 Ill. App. 3d 435 (1998); Parham v. Macomb Unit School District No. 185, 231 Ill. App. 3d 764, 596 N.E.2d 1192 (1992).", "type": "majority", "author": "JUSTICE GORDON" } ], "attorneys": [ "Jerome W Pinderski, Jr., Paul C. Pinderski, and Polly J. Pinderski, all of Pinderski & Pinderski, Ltd., of Palatine, for petitioner.", "Elliot Goldman and Tracy A. Peterson, both of Matkov, Salzman, Madoff & Gunn, for respondent Deluxe Corporation.", "James E. Ryan, Attorney General, of Chicago (Barbara A. Preiner, Solicitor General, and Michael A. Rakov, Assistant Attorney General, of counsel), for other respondents." ], "corrections": "", "head_matter": "MARGARET KALUSH, Petitioner, v. THE DEPARTMENT OF HUMAN RIGHTS CHIEF LEGAL COUNSEL et al., Respondents.\nFirst District (3rd Division)\nNo. 1\u201497\u20142771\nOpinion filed August 19, 1998.\nJerome W Pinderski, Jr., Paul C. Pinderski, and Polly J. Pinderski, all of Pinderski & Pinderski, Ltd., of Palatine, for petitioner.\nElliot Goldman and Tracy A. Peterson, both of Matkov, Salzman, Madoff & Gunn, for respondent Deluxe Corporation.\nJames E. Ryan, Attorney General, of Chicago (Barbara A. Preiner, Solicitor General, and Michael A. Rakov, Assistant Attorney General, of counsel), for other respondents." }, "file_name": "0980-01", "first_page_order": 1000, "last_page_order": 1016 }